I filed W7 form to issue ITIN for my spouse (F2 visa to file jointly) but it was rejected since we couldn't send his original passport. How I can file my state return?

[besito89]

My spouse also has been more than 5 years in the US,  but has  no income due to F2. Is it required to get an ITIN for them? Due to W7 rejection, I read online that my federal return should be adjusted automatically to 'filing as married separately'. Is this true? How about state return? I tried to do that online (filing as married separately) but it was rejected due to spouse's SSN/ITIN not being correct (it was the generic one).  

[Anonymous_]

@pk?

[pk]

@besito89 , are you on F-1  and is that why your spouse is on a dependent F-2 visa?  Which country are  you each from ?   When did you first enter this country with F-1  ( five years ago or what ? )? What is your visa status now?   As a student why do you need to file jointly ?

Some of these questions ( which I would like answered) may or may not affect my answer but  these do give me the full back ground, so, please answer as many as you can--yes?

As far as the rejection by the IRS of the application ( not properly filed ), I would suggest visiting the local IRS office ( or the nearest ) and  ask them for help  including certifying a copy of the  original passport to satisfy the documentation requirements.

If you filed jointly and asked for ITIN issuance  retroactively,  you would have to amend your return to Married filing Separately  IF you are still Non Resident Alien because 1040-NR assumes  single / married Filing Sep.  However , if you have passed the SPT and therefore a Resident for Tax Purposes, then yes , you do file on 1040 , can use TurboTax and indeed can file joint with your spouse if and only if the spouse has a tax ID ( SSN / ITIN ).

Once I hear from you on my questions, I will circle back

pk

[besito89]

@pk Thank you for taking my question! I’m on F1 OPT and we have been both in the US for more than 5 years on F1/F2 status. This is the first time I’m filling as resident for tax purposes, and we thought the only option was to file jointly. Isn’t a requirement for my spouse to file as resident for tax purposes, even if he is on F2 without any income? Is it still okay to file separately, if my spouse doesn’t get ITIN on time? I’m worried that even if we re-apply for his ITIN at the IRS office, we won’t get it on time before the october deadline for filing state  taxes.

[pk]

@besito89 ,

(a) you can always  file as Married Filing Sep  ( if you are filing as a Resident for Tax purposes). This is true especially if your spouse does NOT  have any income ( world income) --- note that his immigration status  ( dependent visa ) is the same as your yours.  TurboTax will give you trouble though because even for MFS ( Married Filing Separately ) it will still ask for  spouse's details --- you have prepare  using dummy SSN, print the return, replace dummy SSN with  " N  R  A" and file by mail.  But you can use standard deduction for a single person

(b)  When did you enter the country --- 2016 ?  Which country are from ( both from the same ? )?  There may be  tax treaty benefits -- would not know  till I know which country you are from 

 I will circle back once I hear from you 

adios

pk

[besito89]

Yes, we entered in 2016. We are both from a European country, there are no treates except for the first year. If I replace his dummy SSN with ‘NRA’, would it be correct? Because his status is same as mine, this year he should be considered as Resident Alien for Tax Purposes. Also, since we submitted the tax return along with the W7 that was rejected (since we missed the deadline for sending the original passport), will that return still be processed automatically (and being adjusted to MFS)? Would it be okay to resubmit (via mail) as MFS both federal and state? And once he gets his ITIN, to modify both returns?

[pk]

@besito89 , touche'  --- I stand corrected  -- yes you write RA in lieu of NRA.

You still did not tell me which country are you from ?  I would have guessed Spain but I am often wrong in such  dataless guesses ( perhaps because of your nom-de-plum  "besito" -- little kiss in Spanish. LOL.  I keep asking for because , absent a treaty covering the situation, as a student if you are receiving a stipend  that is used for living expenses, it may be taxable income.  Most treaties, cover this  for international students  , trainees, researchers etc ( F, J ).

Since you filed a paper-return for 2021 (?), it may not have been processed - but you have filed.  I would hold still to see what the IRS does ( any amended return would just create more issues).

In the meantime , however, I would urge you to refile  (with ALL required documents) application for ITIN for your spouse. so that by the time 2022 filing season  comes into force , you can file as MFJ.  Then you go back and file and amended return for 2021 ( if so required  i.e.  IRS had changed your filing status as MFS for 2021 )

Without knowing which state you are domiciled in , I cannot take a position  but generally you are correct in that you may have to amend the state returns once you amend the federal.

Does this help ?  Is there more I can do for you ?